Rules vs standards

Political Constraints on Legal Doctrine: How Hierarchy Shapes the Law
Jeffrey R. Lax Department of Political Science Columbia University JRL2124@columbia.edu January 16, 2011
Abstract When higher court judges attempt to assert control over lower-court decision-making, do such hierarchical politics shape legal doctrine? Using a “case-space” model of choice between determinate doctrines (rules)and more flexible doctrines (standards), I argue that the structure of doctrine affects the application of and compliance with doctrine by lower courts, and this in turn affects choice among doctrinal structures. Doctrinal choice, legal complexity, lower court discretion, and the allocation of judicial resources are shown to depend on hierarchical conflict, the transparency of decisions, sensitivityto case facts, judicial expertise, salience, and issue complexity. These incentives have counterintuitive effects on lower court discretion and on doctrinal specificity, and they create odd patterns of ideological and doctrinal alignment. Ignoring these incentives undercuts our understandings of lower court compliance and of judicial ideology.

The Supreme Court and the lower federal courts playdistinct roles in the production of legal policy. The top tier of a judicial hierarchy concentrates far more on doctrine—rule creation and articulation—while the bottom tier concentrates on application of rules to specific cases. As (Shapiro 2006, 273) puts it, the Supreme Court itself does not “routinely apply the rules and standards it announces. Instead, the Court has cast itself in an‘Olympian’ role—announcing rules and standards from on high.” The justices of the Supreme Court rely on the legal opinions they hand down as vehicles for their legal policy goals; the judges on the Courts of Appeals, in the middle level of the federal judicial hierarchy, rely on their opinions to govern dispute resolution by the district court judges the bottom tier. Lower court judges can disagree withtheir hierarchical superiors about case outcomes and the rules determining them, for reasons of ideology or legal philosophy. Even when the lower courts are largely aligned with the higher court or simply seek to obey their superiors, it may still be difficult for the higher court to convey exactly what it wants in the full range of possible cases that can arise. How do the content and structure oflegal doctrine affect compliance and rule application in the lower courts? And, as higher court judges construct legal doctrine to best get the case outcomes they want, does reliance on hierarchical application of doctrine affect choice of doctrine in the first place? In short, do hierarchical politics shape law? I study the incentives driving the choice between determinate doctrines (bright-linerules) and more flexible or indeterminate doctrines (standards), in the face of concerns over doctrinal application. Both bright-line rules and standards tell lower courts which factual dimensions to take into account when deciding cases and how. I argue that the key difference is that a standard incorporates a factual dimension that is qualitatively different—lacking full transparency orspecificity—from dimensions that are capable of greater precision, specificity, and transparency. Consider the Supreme Court’s rulings on death sentences for minors, which have focused on, inter alia, the maturity and sense of responsibility of the defendants. The Court could have in-

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structed lower courts to explore the maturity of each defendant according to some set of guidelines or perhaps amulti-pronged test, of which age or an IQ test could play some part as balanced against other information about maturity. Such a balancing test would be difficult to specify in the abstract and hard to monitor, and lower court judges could take advantage of this ambiguity to decide particular cases against the wishes of the higher court. It is indeed these very features that define a standard in the...